State v. Price (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Price, Slip Opinion No. 2020-Ohio-4926.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2020-OHIO-4926
THE STATE OF OHIO, APPELLEE, v. PRICE, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Price, Slip Opinion No. 2020-Ohio-4926.]
Criminal law—R.C. 2925.02(A)(3)—Corrupting another with drugs—Causation-
element jury instructions—But-for causation—Independently sufficient
causation—Contributing-factor causation—Trial court did not abuse its
discretion in instructing jury on causation.
(Nos. 2019-0729 and 2019-0822—Submitted June 16, 2020—Decided October
20, 2020.)
CERTIFIED by and APPEAL from the Court of Appeals for Cuyahoga County,
No. 107096, 2019-Ohio-1642.
__________________
KENNEDY, J.
{¶ 1} In this discretionary appeal from the Eighth District Court of Appeals,
which also certified a conflict between its judgment and a judgment of the Fifth
District Court of Appeals, we consider whether a trial court, when instructing a jury
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on the causation element of the offense of corrupting another with drugs, is required
to inform the jury that it must find not only that the accused’s conduct was the “but-
for” cause of serious physical harm to the victim—i.e., that without the accused’s
conduct, the injury would not have occurred—but also that it was an “independently
sufficient cause” of that harm.
{¶ 2} Appellant, Mark Price, relies on the United States Supreme Court’s
decision in Burrage v. United States, 571 U.S. 204, 218-219, 134 S.Ct. 881, 187
L.Ed.2d 715 (2014), for the proposition that a jury instruction on the causation
element must instruct on both but-for causation and independent sufficiency. But
Price did not request this specific instruction. Instead, he asked the trial court to
instruct the jury that he could not be convicted of corrupting another with drugs
unless the jury found that his conduct was the but-for cause of the victim’s serious
physical injury or, alternatively, an independently sufficient cause of that harm.
The trial court gave the jury the essence of the instruction that he requested. Price
did not object to its language, and the court of appeals properly held that he has not
established that the trial court abused its discretion in giving the instruction that it
did.
{¶ 3} Turning to the certified-conflict question, we conclude that there is no
conflict. Although the Eighth District in dicta criticized the Fifth District’s
reasoning in the certified-conflict case, the Eighth District’s actual holding in this
case that there was no abuse of discretion in instructing the jury is not in conflict
with the Fifth District’s holding that the offense of corrupting another with drugs
requires proof of but-for causation.
{¶ 4} Therefore, we address the proposition of law raised in case No. 2019-
0822 and affirm the judgment of the court of appeals, and we dismiss case No.
2019-0729 as improvidently certified.

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Facts and Procedural History
{¶ 5} In the early morning hours of August 1, 2016, James Dawson
contacted his neighbor, Tierra Fort, and the two then exchanged a series of text
messages regarding Dawson’s attempt to find someone to sell him heroin. Acting
as an intermediary in exchange for a share of the drugs, Fort contacted Price and
asked him to sell a gram of heroin to Dawson for $100. Price delivered the drugs
in a baggie to Fort’s apartment at around 3:00 a.m., and Fort gave him the money
that had been supplied by Dawson. Dawson came to Fort’s apartment, picked up
the drugs, and left after giving Fort approximately $20 worth of them.
{¶ 6} Dawson was found dead in his apartment of an apparent overdose
around 10:40 a.m. the next day, August 2, 2016. A Lakewood police officer who
responded to a 9-1-1 call observed a “pinkish-powder residue” and a “straw” (the
hollow tube of an ink pen) on the kitchen table. There were also six pills on the
floor near Dawson’s body as well as prescription bottles in the apartment.
Detective Amelio Leanza searched Dawson’s cellphone and discovered the text
messages Dawson had exchanged with Fort. That same day, he obtained a warrant
for Fort’s arrest and a warrant to search her apartment. He executed both warrants
and seized Fort’s cellphone, drug paraphernalia, and a rock of heroin, as well as a
credit card coated with a powder that was similar in appearance to the powder found
on Dawson’s kitchen table.
{¶ 7} Detective Leanza interviewed Fort and learned that someone with the
street name “Bam,” who was a contact on Fort’s cellphone, had supplied the drugs.
He searched Facebook using Bam’s cellphone number, and Fort identified Price
from a picture on Facebook. Detective Leanza had Fort call Price to arrange a
controlled purchase of drugs, and she confirmed that Price was the passenger in a
blue Chrysler 200 when he arrived at the agreed-upon location, the Greater
Cleveland Regional Transit Authority station at 117th Street and Madison Avenue.
Officers arrested Price, and while Detective Leanza was placing Price in a police

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cruiser, he saw Price go limp and realized that Price had consumed the drugs.
Detective Leanza administered Narcan to counteract an overdose. When
paramedics arrived to treat Price, they discovered a baggie containing a pinkish-tan
substance in his mouth. He was transported to a hospital for observation for a time
and later to jail.
{¶ 8} Tests of the pinkish powder found in Dawson’s and Fort’s apartments,
on the credit card used to cut it, and in the straw showed that they contained heroin
and fentanyl.
{¶ 9} The Cuyahoga County Grand jury returned a 22-count indictment
alleging that Price committed 1 count of involuntary manslaughter, 2 counts of
corrupting another with drugs, 11 counts of trafficking, 6 counts of drug possession,
1 count of tampering with evidence, and 1 count of possessing criminal tools in
addition to various specifications.
{¶ 10} Joseph Felo, D.O., chief deputy medical examiner and forensic
pathologist for the Cuyahoga County Medical Examiner’s Office, performed an
autopsy on Dawson’s corpse and testified at trial that he initially thought that heart
and lung disease could have caused Dawson’s death. However, a toxicological
evaluation identified a high level of fentanyl—which he called “a potent narcotic
medication” and which was not one of Dawson’s prescribed medications—and two
prescription antidepressants, mirtazapine and escitalopram, in Dawson’s system.
Dr. Felo described respiratory depression (in which the body slows down breathing
and the lungs “essentially stop”) as a side-effect of fentanyl that could manifest
itself in the physical changes he had observed in Dawson’s organs, particularly his
lungs. He determined the cause of Dawson’s death to be acute intoxication by the
combined effects of escitalopram, fentanyl, and mirtazapine—with fentanyl “the
primary cause” and the antidepressants having “a very small role” in the respiratory
depression that killed Dawson.

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{¶ 11} The defense presented the testimony of Robert J. Belloto Jr., Ph.D.,
as an expert in pharmacology and toxicology. Dr. Belloto explained that because
the heroin in Dawson’s system had metabolized and the level of fentanyl in a
person’s blood system can increase after death, it was his opinion that Dawson had
lived for up to five hours after taking a dose of heroin and fentanyl. Dr. Belloto
opined that Dawson had not died of an acute overdose from the powder containing
heroin and fentanyl, although he admitted that a pure dose of fentanyl could also
explain the level detected in Dawson’s blood. Dr. Belloto believed that a heart
disorder likely caused Dawson’s death.
{¶ 12} After the defense rested, defense counsel requested a jury instruction
drawn from the United States Supreme Court’s decision in Burrage, 571 U.S. 204,
134 S.Ct. 881, 187 L.Ed.2d 715. As articulated by defense counsel, the requested
instruction was, “Where the drug distributed by the Defendant—this is the holding
of [Burrage]—is not an independently sufficient cause of the victim’s death or
serious bodily injury, a Defendant cannot be responsible unless such use was the
but-for cause of death or injury.” According to defense counsel, “It’s about
causation. [Burrage’s] subject matter deals with the federal statute that deals with
heroin and overdoses, but the issue in the case is causation.”
{¶ 13} The trial court denied Price’s request for this specific instruction and
instead instructed the jury on causation as follows:

Cause. The State charges that the act or failure to act of the
Defendant caused the death of James Dawson. Cause is an essential
element of the offense. Cause is an act or failure to act which in a
natural and continuous sequence directly produces the death of a
person, and without which, it would not have occurred.
Natural consequences. The Defendant’s responsibility is not
limited to the immediate or most obvious result of the Defendant’s

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act or failure to act. The Defendant is also responsible for the natural
and foreseeable consequences or results that follow in the ordinary
course of events from the act or failure to act.
Other causes not a defense. There may be one or more
causes of an event, however, if a Defendant’s act or failure to act
was one cause, then the existence of another cause is not a defense.
Intervening causes. The Defendant is responsible for the
natural consequences of the Defendant’s unlawful act or failure to
act even though the death of a person was also caused by the
intervening act or failure to act of another person or agency.
Independent intervening cause of death. If the Defendant
inflicted an injury not likely to produce death, and if the sole and
only cause of death was natural cause or fatal injury inflicted by
another person, the Defendant who inflicted the original injury is not
responsible for the death.
Causation. Conduct is the cause of a result if it is an event,
but for which the result in question would not have occurred.

Price did not specifically object to this language.
{¶ 14} The jury acquitted Price of involuntary manslaughter but found him
guilty of the remaining counts and specifications. The trial court merged some
counts as allied offenses of similar import, and it sentenced Price to an 8-year term
in prison for corrupting another with heroin, served consecutively to an 8-year term
for corrupting another with fentanyl and concurrently with terms of 12 months for
heroin tracking, 6 months for a second count of heroin trafficking, 12 months for
fentanyl trafficking, 12 months for a second count of fentanyl trafficking, 12
months for tampering with evidence, and 6 months for possessing criminal tools.
In all, the trial court imposed an aggregate sentence of 16 years in prison.

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{¶ 15} The Eighth District Court of Appeals affirmed in part and reversed
in part. It rejected arguments that the convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence and that the trial
court deprived Price of the opportunity to present exculpatory evidence. And
relevant here, the appellate court concluded that the trial court had not abused its
discretion in denying Price’s request for the instruction drawn from Burrage,
explaining that “it appears that the trial court’s instructions set forth a ‘but-for’ test
that Price sought. Further, the record reveals that the trial court’s instructions, taken
in their entirety, fairly and correctly state the law applicable to the evidence
presented at trial.” 2019-Ohio-1642, 135 N.E.3d 1093, ¶ 43. However, the court
of appeals determined that the trial court had erred in failing to merge the two
convictions for corrupting another with drugs as allied offenses of similar import.
It therefore remanded the matter to the trial court for resentencing.
{¶ 16} The court of appeals, sua sponte, certified that its judgment in this
case conflicts with the judgment of the Fifth District Court of Appeals in State v.
Kosto, 5th Dist. Licking No. 17 CA 54, 2018-Ohio-1925.
{¶ 17} In Kosto, the Fifth District held that there was insufficient evidence
that the accused committed involuntary manslaughter or corrupted another with
drugs, because the state had failed to prove that selling the victim heroin was the
but-for cause of harm to the victim. Id. at ¶ 24, 29. In that case, the state’s expert
testified that the victim had died from the combined effects of cocaine and heroin,
and he was not able to say that heroin use was the sole cause of death. Id. at ¶ 21.
And because there was insufficient evidence of causation, the court of appeals
concluded that the defendant’s argument regarding the jury instruction on causation
was moot. Id. at ¶ 30.
{¶ 18} We determined that a conflict existed and directed the parties to brief
the following issue: “Whether the ‘but-for causality’ rationale of Burrage v. United
States, 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), applies to the ‘cause

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serious physical harm to [another]’ element of R.C. 2925.02(A)(3).” 157 Ohio
St.3d 1417, 2019-Ohio-3797, 131 N.E.3d 952.
{¶ 19} However, upon further review, we conclude that no conflict exists.
We recognize that the Eighth District expressed disagreement with the Fifth
District’s reasoning in Kosto, stating that the Fifth District “ ‘failed to consider
whether the heroin that Kosto provided the victim was a substantial or contributing
factor to the victim’s death or serious physical harm and whether the resulting harm
was foreseeable.’ ” 2019-Ohio-1642, 135 N.E.3d 1093, at ¶ 41, quoting State v.
Carpenter, 2019-Ohio-58, 128 N.E.3d 857, ¶ 54 (3d Dist.). But that statement is
dicta given the differing circumstances of the two cases. The Eighth District here
held that the trial court had not abused its discretion in instructing the jury, because
“it appears that the trial court’s instructions set forth a ‘but-for’ test that Price
sought.” Id. at ¶ 43. The Eighth District did not uphold an instruction that causation
could be established if the accused’s conduct was a substantial or contributing
factor to the resulting harm. Accordingly, the judgments of the Fifth and Eighth
Districts do not conflict on the same question, and we dismiss the certified-conflict
case as improvidently certified. See Article IV, Section 3(B)(4), Ohio Constitution;
S.Ct.Prac.R. 8.04.
{¶ 20} We also accepted Price’s discretionary appeal on the following
proposition of law:

The jury must be instructed that a distributor of drugs is only
responsible for causing death to the user of those drugs when the
evidence proves that the ingestion of the drugs provided by the
distributor was an independent cause of death and that, but for the
ingestion of those drugs, the user would not have died.

See 157 Ohio St.3d 1418, 2019-Ohio-3797, 131 N.E.3d 961.

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{¶ 21} Price maintains that the trial court’s instructions were deficient
because they did not require the jury to find both that his actions were the but-for
cause of serious physical harm to Dawson and that his actions were independently
sufficient to cause that harm. He asserts that by instructing the jury that the
existence of another cause of that harm is not a defense, the trial court essentially
permitted the jury to find him guilty if it determined that his actions were only a
substantial or contributing factor in bringing about that harm.
Law and Analysis
Jury Instructions
{¶ 22} As we explained in State v. White, “[a] trial court has broad
discretion to decide how to fashion jury instructions, but it must ‘fully and
completely give the jury all instructions which are relevant and necessary for the
jury to weigh the evidence and discharge its duty as the fact finder.’ ” 142 Ohio
St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State v. Comen, 50 Ohio
St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Although “[w]e
require a jury instruction to present a correct, pertinent statement of the law that is
appropriate to the facts,” id., we have recognized that “there is a limit, and ‘[n]o
purpose is served, for instance, by requiring courts to present redundant jury
instructions or instructions that are so similar to other instructions to be presented
as to be confusing,’ ” id., quoting State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-
4767, 24 N.E.3d 1147, ¶ 5.
Burrage v. United States
{¶ 23} In Burrage, 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715, the
United States Supreme Court construed a federal sentencing-enhancement statute,
21 U.S.C. 841(b)(1)(C), that imposes a 20-year mandatory-minimum sentence on
an offender who unlawfully distributes a Schedule I or II drug, when “death or
serious bodily injury results from the use of such substance.” The victim in that
case had died following an extended drug binge that included using heroin that

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Marcus Burrage had sold him. The government charged Burrage with distributing
heroin and sought to prove that the victim’s “ ‘death * * * resulted from the use of
th[at] substance.’ ” Burrage at 207, quoting the indictment. However, expert
witnesses testified at Burrage’s trial that although the victim’s use of heroin
contributed to his death, they could not say that the victim would have lived if had
he not taken the heroin. Id.
{¶ 24} The Supreme Court explained that the ordinary meaning of the
phrase “results from” imposes a requirement of actual causality: that but for the
defendant’s conduct, the harm would not have occurred. Id. at 210-211, 212. It
rejected the government’s argument that because drug overdoses often involve
multiple drugs, the court should apply “an interpretation of ‘results from’ under
which use of a drug distributed by the defendant need not be a but-for cause of
death, nor even independently sufficient to cause death, so long as it contributes to
an aggregate force (such as mixed-drug intoxication) that is itself a but-for cause of
death.” Id. at 214-215.
{¶ 25} The Supreme Court first distinguished but-for causation from
situations “when multiple sufficient causes independently, but concurrently,
produce a result.” Id. at 214. It cited an example in which A fatally stabs B at the
same time that X, acting independently, fatally shoots B. In those circumstances,
neither A’s nor X’s action can be considered the but-for cause of B’s death—B
would have died notwithstanding the fatal stab wound because he was shot at the
same time and vice versa. Id. at 215. But the Supreme Court did not need to apply
such a rule, “since there was no evidence here that [the victim’s] heroin use was an
independently sufficient cause of his death. No expert was prepared to say that [the
victim] would have died from the heroin use alone. Id.
{¶ 26} It then rejected the government’s additional argument that the term
“results from” could encompass action that “was a ‘substantial’ or ‘contributing’
factor in producing a given result.” Id., 571 U.S. at 215-216, 134 S.Ct. 881, 187

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L.Ed.2d 715. According to this approach advocated by the government, when a
contributing factor, standing alone, is not sufficient to bring about the harm,
causation is theorized to exist when contributing factors combine to produce the
harm. Id. Calling this theory “less demanding (but also less well established),” id.
at 215, the court explained that if Congress had intended the mandatory-minimum
sentence to apply when the drug use only contributed to the victim’s death, it could
have done so, but “[i]t chose instead to use language that imports but-for causality,”
id. at 216.
{¶ 27} Accordingly, the Supreme Court held that “at least where use of the
drug distributed by the defendant is not an independently sufficient cause of the
victim’s death or serious bodily injury, a defendant cannot be liable under the
penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a
but-for cause of the death or injury.” Id. at 218-219.
{¶ 28} That holding is not binding on this court. It interprets the meaning
of a specific federal statute, and it does not establish any constitutional rule
applicable to the states. For this reason, the Supreme Court’s statements regarding
the meaning of but-for causation, independently sufficient causes, and contributing
factors do not control the outcome today. See State v. Burnett, 93 Ohio St.3d 419,
422, 755 N.E.2d 857 (2001) (“the Supremacy Clause binds state courts to decisions
of the United States Supreme Court on questions of federal statutory and
constitutional law”). Burrage is persuasive authority only.
Instructions on Corrupting Another with Drugs
{¶ 29} R.C. 2925.02 provides:

(A) “No person shall knowingly do any of the following:
***
(3) By any means, administer or furnish to another or induce
or cause another to use a controlled substance, and thereby cause

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serious physical harm to the other person, or cause the other person
to become drug dependent[.]

(Emphasis added.)
{¶ 30} Despite the way he frames his argument, Price did not ask the trial
court for an instruction that the word “cause” as used in R.C. 2925.02(A)(3)
requires a finding that the accused’s conduct was both the but-for cause of serious
physical harm to the victim and an “independently sufficient cause” of that harm.
See Crim.R. 30(A) (“any party may file written requests that the court instruct the
jury on the law as set forth in the requests”). But even if he had, Price’s reliance
on Burrage as requiring that instruction is misplaced. As explained above, the court
in Burrage distinguished but-for causation from “independently sufficient”
causation, conceptualizing them as mutually exclusive theories of causation. Id.,
571 U.S. at 215, 218-219, 134 S.Ct. 881, 187 L.Ed.2d 715. There is no but-for
cause of harm when independently sufficient causes of that harm coincide.
{¶ 31} Instead, at trial, Price sought an instruction stating: “Where the drug
distributed by the Defendant * * * is not an independently sufficient cause of the
victim’s death or serious bodily injury, a Defendant cannot be responsible unless
such use was the but-for cause of death or injury.”
{¶ 32} The trial court gave the jury the essence of this instruction, albeit in
different language, but Price did not raise any specific objection to the phrasing that
the trial court used in giving it. See State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002); Crim.R. 30(A) (“a party may not assign as error the giving or
the failure to give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the grounds of
the objection”).
{¶ 33} First, the trial court defined “cause” to mean “an act or failure to act
which in a natural and continuous sequence directly produces the death of a person,

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and without which, it would not have occurred.” Its instructions further stated that
“[c]onduct is the cause of a result if it is an event, but for which the result in question
would not have occurred.” These instructions informed the jury that it could not
convict Price of corrupting another with drugs unless it found that Price’s conduct
was the but-for cause of Dawson’s death.
{¶ 34} The trial court also gave an instruction regarding “independently
sufficient causes” when it instructed the jury that “[t]here may be one or more
causes of an event, however, if a Defendant’s act or failure to act was one cause,
then the existence of another cause is not a defense.” This instruction still required
Price’s conduct to be a cause of Dawson’s death, and as noted above, cause was
defined to mean “an act or failure to act which in a natural and continuous sequence
directly produces the death of a person, and without which, it would not have
occurred.”
{¶ 35} Lastly, Price maintains that the instructions permitted the jury to find
him guilty if it found that the drugs Price sold to Dawson through Fort were a
substantial or contributing factor to Dawson’s death. He asserts that “us[ing] the
‘substantial or contributing cause’ analysis to determine the ‘but-for’ cause * * * is
exactly the opposite [of the] legal reasoning utilized by the Court in Burrage.”
{¶ 36} But the Supreme Court in Burrage described a contributing factor as
one that, standing alone, is not sufficient to bring about the harm. Id., 571 U.S. at
212, 214-216, 134 S.Ct. 881, 187 L.Ed.2d 715. And here, the jury instructions
required the jury to find that Price’s act directly produced Dawson’s death, without
which, that death would not have occurred. Therefore, the trial court’s instructions
did not permit the jury to predicate guilt based on a finding that the drugs Price
furnished to Dawson merely contributed to his death.
Conclusion
{¶ 37} Price asserts that in the jury instructions on corrupting another with
drugs, the jury should have been instructed that his sale of drugs must have been

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both the but-for cause of Dawson’s death as well as an “independently sufficient
cause” of Dawson’s death. However, Price did not ask the trial court to give that
instruction. Rather, he sought an instruction that the jury was required to find either
that his conduct was the but-for cause of Dawson’s death or that it was an
independently sufficient cause of Dawson’s death. The trial court provided the
essence of that instruction. And because the trial court did not instruct the jury that
it could convict Price if it found that the drugs he supplied to Dawson were a
substantial or contributing cause of Dawson’s death, the propriety of such an
instruction is not before this court in this case.
{¶ 38} Accordingly, the judgment of the court of appeals is affirmed in case
No. 2019-0822, and case No. 2019-0729 is dismissed as improvidently certified.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Katherine E. Mullin, Jeffrey Schnatter, and Patrick Lavelle, Assistant Prosecuting
Attorneys, for appellee.
Susan J. Moran, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Diane R. Brey, Deputy Solicitor General, urging affirmance for amicus curiae
Attorney General Dave Yost.
Mark A. Stanton, Cuyahoga County Public Defender, and Robert B.
McCaleb, Assistant Public Defender, urging reversal for amicus curiae Cuyahoga
County Public Defender’s Office.
_________________

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